한국과 중국의 회사법상 주식회사 이사회제도에 관한 비교 연구

Abstract

In China, the Company Law of 1993 played a significant role during the transfer from a planned economy to a market economy; however, because the Company Law of 1993 mainly served for the transfer of state-owned enterprises to a corporate form there were many provisions related to state-owned enterprises. In particular, provisions that provided preferential policies for state-owned enterprises resulted in an inequality between state-owned enterprises and non state-owned enterprises. As a result, investors were not able to make good use of company structures because there were many provisions that enabled the government to intervene in a company. To solve these problems, China has revised its Company Law three times. Among these the most significant is the amendment to the Company Law of 2005. In particular the most striking changes were amendments related to corporate governance, and the major amendments are as follows: first, establishing a one person one vote voting system for any decisions to be taken at meetings of directors; second, implementation of voting rights restrictions to prevent directors from abusing the principle of a majority to control the company; third, adding provisions to enable any decisions of the directors that are defective to be made void or be canceled for the protection of the interests of the company; fourth, introducing a cumulative voting system to prevent the largest shareholders from using their votes to elect their own directors; fifth, introducing the concept of a derivative suit system for high level officers and shareholders to strengthen the company's interests, specifying a director's duty of loyalty, and adding a director's duty of care; sixth, adding special provisions for listed companies; and, seventh, allowing the manager to be a legal representative. Despite these amendments to Chinese Company Law, many problems exist owing to the short history of company law in China. Especially there are serious problems related to the directors, and as the board of directors plays a central role in corporate governance it is necessary to have a study on the role of directors in the Company Law of 2005. Meanwhile, Korea amended its Companies Act in 2011 to enhance economic strength, and the intensity and scope of these amendments was unprecedented. The amendments related to the board of directors are as follows: first, the scope of limitations on persons who undertake self-dealing was increased and an impartiality requirement was added to the contents of self-dealing; second, provisions related to the usurpation of corporate opportunities were added; third, a reduced responsibility system was implemented to improve the enthusiasm for business of the directors; and, fourth, an executive system was introduced to enhance the supervision of the board of directors and improve the business execution abilities of the directors. China and Korea share certain similarities in terms of corporate governance; therefore, this paper will make a comparison between the roles of company directors in China and Korea and, from the comparison, put forward some constructive comments related to Chinese Company Law.